Out of Control Policy Blog

House Homeland Security Committee Holds Hearings on Airport Security

Yesterday the House Homeland Security Subcommittee held a hearing titled “Perspectives on the future of Transportation Security”. The subcommittee examined ways to improve the Transportation Security Administration. Americans who have flown over the past ten years have experienced the security screenings operated by the TSA.

Chairman Mike Rogers (R) from Alabama who oversaw the hearing offered this opening statement (part below):

Let me start by saying that giving up on TSA without having something better to fill its place is not an option.

For all of its faults, the fundamental reason TSA was set-up after 9/11 was to deploy enhanced security measures to prevent another attack on aviation.

That security mission is just as important today, if not more important than it was eleven years ago.

Having said that, letting TSA carry on the way it has for the last eleven years is equally not an option.

TSA’s poor conduct is sending a strong message to American taxpayers. 

That message is: TSA doesn’t care or doesn’t know how to best serve and protect the traveling public.

I am convinced we need to undertake major reforms to the federal government’s role at our airports.

Several experts testified including my colleague Bob Poole. Bob’s full testimony is available here. Bob discussed four major topics. The first is TSA’s conflict of interest:

I served as an advisor to the House Transportation & Infrastructure Committee in the days following the 9/11 attacks, as Congress was grappling with how to improve aviation security. The legislation that created the TSA—the Aviation & Transportation Security Act (ATSA) of 2001—built in a conflict of interest in the new agency. On the one hand, TSA is designated as the agency that establishes transportation security policy and regulates those that provide transportation operations and infrastructure (airlines, airports, railroads, transit systems, etc.). But on the other hand, TSA itself is the operator of the largest component of airport security—passenger and baggage screening.

When it comes to screening, therefore, TSA has a serious conflict of interest. With regard to all other aspects of airport security—access control, perimeter control, lobby control, etc.—security is the responsibility of the airport, under TSA’s regulatory supervision. But when it comes to screening, TSA regulates itself. Arm’s-length regulation is a basic good-government principle; self-regulation is inherently problematic.

The second is how the U.S. is out of step with other countries:

In 2008 the OECD’s International Transport Forum commissioned me to do a research paper comparing and contrasting aviation security in the United States, Canada, and the European Union. In the course of that research, I was surprised to discover that the conflict of interest that is built into TSA does not exist in Canada or the EU countries. If you go to Canada or any of the major EU countries, airport screening looks similar to what you experience at U.S. airports. But the way in which this service is provided and regulated is quite different. In all these cases, the policy and regulatory function is carried out by an agency of the national government, as in the United States. But actual airport screening is carried out either by the airport itself or by a government-certified private security firm. Legally, in Europe airport security is the responsibility of the airport operator. Whether the screening is carried out by the airport or a security company varies from country to country, but in no case is it carried out directly by the national government aviation security agency.

The third is the difference between TSA’s current contracting and performance contracting:

Competitive contracting has been widely used at local, state, and federal levels of government. In recent decades, it has been embraced by elected officials of both parties as a way of achieving greater value for the taxpayer’s dollar. One of the most influential books on the subject was Reinventing Government by David Osborne and Ted Gaebler, advisors to Vice President Gore’s National Performance Review project. Under this approach, a government wanting a service delivered more cost-effectively must define the outcomes it wishes to achieve, leaving qualified bidders free to propose their own procedures and technology for achieving those outcomes. Such contracts typically stress measurement of outcome variables, and often provide financial penalties and bonuses.

By contrast, under the Screening Partnership Program (SPP) set up by TSA’s interpretation of the opt-out provisions in the ATSA legislation, the entire process is micromanaged by TSA. Instead of permitting the airport in question to issue an RFP to TSA-certified firms, TSA itself selects the company and assigns it to the airport. And TSA itself manages the contract with the screening company, rather than allowing the airport to integrate screening into its overall security program, under TSA supervision and regulation. Moreover, TSA spells out procedures and technology (inputs) rather than only specifying the desired outcomes of screening, thereby making it very difficult for screening companies to innovate. Moreover, the ATSA legislation mandates that compensation levels for private screeners be identical to those of TSA screeners.

Finally, Bob offered several steps to improve TSA in the future:

Based on the foregoing assessment, I have two recommendations for improving airport screening.

The most urgent one is to further reform the current SPP. Recent legislation that puts the burden of proof on TSA in denying an airport’s request to opt out of TSA-provided screening is a modest step in the right direction, but does not correct TSA’s overly centralized approach. SPP should be further reformed so that:

·      The airport, not TSA, selects the contractor, selecting the best-value proposal from TSA-certified contractors.

·      The airport, not TSA, manages the contract, under TSA’s overall regulatory oversight of all security activities at the airport in question.

I believe these changes could be made by directing TSA to adopt them as policy changes, without the need to revise the actual language of the ATSA legislation.

Second, I recommend revising the ATSA legislation to remove the conflict of interest that Congress built into that law. The revision would devolve the responsibility for passenger and baggage screening from TSA to individual airports, as part of their overall security program. Airports would have the option of either hiring a qualified screener workforce or contracting with a TSA-certified security firm. As is already standard practice when airports join SPP, current TSA screeners would have first right to screening positions at the airports shifting over, subject thereafter to the airport’s or the company’s rules and human resources policies. This change would produce greater accountability for screening performance and would also bring the United States into full conformity with ICAO regulations.

Other experts who testified include Dr. Richard Bloom and Mr. Rick Nelson. The full list of witnesses and witness testimony is available here.

The TSA has a certain intransigence to improving itself. For example, let us examine privatizing airport security screening. In the past airports were able to privatize their airport screening functions. When TSA chief John Pistole was confirmed as TSA administrator he decided not to expand the private screening beyond 16 airports because he saw no advantage to it. Since an airport had to prove that there was “a clear and substantial advantage to private screening” and Pistole was the official deciding what clear and substantial advantage meant, not a single airport was able to implement private screening between the beginning of his tenure and early 2012. Pistole’s position appeared to contradict ATSA legislation that allows all airports that want to take part in airport privatization to participate.

When Congress passed the FAA reauthorization bill earlier this year, it tried to fix the problem. TSA chief John Pistole is now required to approve airport requests to privatize screeners unless he determines it would harm security. Recently, Pistole approved private screening at Orlando-Sanford airport in T&I leader John Mica’s district. While the approval is a positive sign, as Pistole is ideologically opposed to privatized screening I am worried that in the future Pistole could find bogus reasons to deny contracting out screening.

It is important that the Homeland Security committee and other relevant committees hold hearings to examine how best to improve airport security. The U.S. airport security system could be much better. Countries from Canada to Germany have much to teach us. Burying our heads in the sand and resisting change is not the way to fix our system.

Baruch Feigenbaum is Transportation Policy Analyst


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